Appendix II: Government Responses
CPJ sought comment for this report from Prime Minister Recep Tayyip Erdoğan and Justice Minister Sadullah Ergin. The requests, made in writing by CPJ Europe and Central Asia Program Coordinator Nina Ognianova, elicited responses from Justice Minister Ergin and Namık Tan, Turkish ambassador to the United States. The prime minister did not respond directly. Here are the full texts of the government’s letters.
From Justice Minister Sadullah Ergin
10 July 2012
Ms. Nina Ognianova
The Committee to Protect Journalists
Europe and Central Asia Program Coordinator
Dear Ms. Ognianova,
We are of the same opinion that the freedom of thought and expression is a fundamental source of legitimacy which provides the foundation of the present democratic systems. We also confirm the importance of the fact that press members, who play a key role in the establishment of a pluralist democratic society, carry on their professional activities freely and without concern.
The Turkish Government, which is determined to strengthen the liberal and democratic character of Turkey, holds a strong political will on the legal protection of fundamental rights and freedoms to the greatest extent. The acknowledgment of the prevalence of international conventions regarding the fundamental rights and freedoms over the national legislation, with the Constitutional amendment carried out in 2004, has been the most important reflection of this political will. Taking into consideration the difficulties and political resistance that may be faced in almost all countries, our reform efforts have continued in a sustainable way, except some periodic decelerations that could be considered reasonable.
Regretting that I will not be able to indicate all details in this short letter, I can only state that the Turkish Governments have been successful in materializing many reforms in the last decade to improve the democratic standards in Turkey. The reform packages which have consecutively been introduced have involved the measures to provide the effectiveness of the judicial functioning in Turkey on one hand and more powerful guarantees in respect of fundamental rights and freedoms on the other. By the 3rd Judicial Reform Package recently adopted by the Turkish Parliament, the suspension of cases and sentences regarding the offences committed by means of press was introduced; and the offences, which had been of particular concern to the press members, such as the attempt affecting the fair trial which had been subject to criticism and the violation of the confidentiality of investigation, were reconsidered and their elements were clarified. Many provisions of the Anti-Terror Law, particularly the one on the lifting of the measure to cease broadcasting, were again revised by this law. Also, the courts with special powers whose working procedures had created controversy and which had been subject to some fair criticism were reformed within this reform package.
Despite the abovementioned facts, I attribute the fundamental freedom framework in Turkey being subject of the current dispute and criticism to the great social desire regarding the improvement of the democratic standards and I certainly find this meaningful. I however would like to establish that the ongoing disputes within the context of the freedom of press and expression are exaggerated and in particular, the issue of journalists in prisons is transformed into a useful political argument with unrealistic figures. The simultaneous expression of very different and inconsistent figures by the different fora indicates the speculative part of the issue.
While respecting the political opposition, which is the most important element of our democratic prosperity, I think that being indifferent to the truths for the sake of the political interests would not contribute at least to the on-going dispute. For this reason, I would especially like to extend my appreciation for your letter, which enables the Turkish Government to put forward its perspective of the issue, and your valuable questions.
Dear Ms. Ognianova,
First of all, I would like to emphasize that no classification is made in the judicial statistical records as to the professions of the persons investigated and prosecuted and therefore there is no official list available relating to the detained or convicted journalists. This is a natural consequence of the fact that investigations and the prosecutions that are conducted by the independent and impartial judicial authorities are based not on the positions and titles of the suspects, but on the characteristics of their acts.
As the Minister of Justice of the Republic of Turkey, without denying the existence of few practical problems, the truth I want to point out unhesitantly is that the pure journalism activities are out of the investigation authorities’ area of interest. Detained or convicted journalists were subject to some measures or sanctions not because of their professional activities but due to their criminal acts.
For instance, on the application lodged with the European Court of Human Rights last year by a journalist who is still tried with the offence of membership of a terrorist organization, the Court confirmed this truth. In this application the details of which can be accessible from the judgment no. 15869/09, the complaints relating to “being deprived of freedom without a reasonable suspicion” and “not being tried within a reasonable time,” which were alleged in parallel with the allegations that you mentioned in your letter, were clearly rejected for being manifestly ill-founded.
I would like to briefly share the following results we reached in the course of the analysis that we made on the basis of a list of 91 people, which was published on 5 May 2012 by “the Platform of Solidarity with Detained Journalists” functioning in Turkey:
Four (4) people in the list have no prison entry record. Twenty-four (24) of the remaining are convicted; sixty-three (63) are detainees and only six (6) out of the total number (91) possess a press card. I would like to particularly note that none of these journalists, who are included in the list and tried or convicted with the allegations of serious offence, are charged on the grounds of their pure journalism activities.
Of all the people imprisoned in our country, the great majority of those who are tried to be linked with journalist identity are the ones who are deprived of their liberty on the grounds of serious offences such as membership of an armed terrorist organization, kidnapping, possession of unregistered firearm and hazardous substance, bombing and murder. Among these people, there exist the ones convicted on the grounds of disgraceful offences such as theft, armed robbery and forgery.
I do not believe that across the world there would exist such a rule of law model that could tolerate these kinds of acts having no direct or indirect relevance with the freedom of press and expression. It is quite obvious that the rule of law is far from the idea of creating privileged classes in committing offences.
The criminal acts, notably the terrorist acts, are the most important threat to the peaceful coexistence conditions of the communities. We certainly could not assume that the communities that give in to this threat can protect the democratic platform in which fundamental rights and freedoms including the freedom of press and expression can survive.
The terrorism, mass influence of which is experienced at political geographies that are far from each other, has remained in the hot agenda of the last thirty years for Turkey, where terror has cost the lives of tens of thousands of innocent people. Apart from the terrorist organizations, Turkey, being across the transition passage between Asia and Europe, is in a decisive struggle with drug traffickers and transboundary criminal organizations which have the will to benefit from this advantage. Our greatest desire is to maintain this struggle on the basis of rule of law, respecting the fundamental rights.
At this point, I should object to the definition of “double-sided judicial system” that you mentioned by linking to the existence of the courts with special powers in Turkey. I would like to particularly underline that the Turkish judicial system has only one side and one tendency, and this is to ensure the public’s peace and security on the basis of respect for fundamental rights and freedoms.
It is a worldwide recognized practice that the offences that are known to have a subtle and complex nature, such as terror and organized crimes, are subject to special investigation methods, and the proceedings are conducted by the specialized courts. In the Continental Law System, many countries, primarily France and Germany, introduced specialization in the legal proceedings and integrated many regulations to their law in order to effectively fight against such crimes. All the courts in Turkey function according to the same procedural rules and they are under the same judicial monitoring mechanism.
Dear Ms. Ognianova,
While expressing these, I am not denying that very few press members might have been deprived of their freedoms in the past due to their actions that could relatively be related to journalism activities. We, as the Government, would not want any single person, whether a journalist or not, to be victimized because of their thoughts or expressions.
The aspect that resulted in sensitivity for the journalists arises in the investigations and prosecutions regarding the offence of terrorist organization propaganda intertwined with journalism activities.
Turkey is making an effort to strike the right balance between preventing the praising of violence and terrorist propaganda, and the need to expand freedom of speech. I need to ask the following critical question in order to be able to express the difficulty of striking this balance: What is the extent of tolerance, in any country across the world, to the idea of journalism where a terrorist organization can explicitly or implicitly publish its instructions to its actions, spread its organizational doctrine to massive crowds and praise violence with a hateful tone? The sincere answer to this question will mark the borders of our freedoms, namely the point where the freedoms start and end.
Finally, I inform you that it would be my pleasure to make a detailed examination and analysis, and to share its results with you if you could send us a list regarding “over a hundred journalists in prison” that you referred to in your letter.
I would like to thank you for your interest and extend my best wishes.
Minister of Justice
From Ambassador Namık Tan
June 29, 2012
Sandra Mims Rowe
Committee to Protect Journalists
Dear Madam Chair,
We have received the letters, signed by your Europe & Central Asia Program Coordinator Ms. Nina Ognianova, to Prime Minister Erdoğan and Justice Minister Ergin regarding the report on press freedom in Turkey that CPJ plans to publish. Thank you for giving us the opportunity to respond and to provide you with context.
Freedom of expression and media, along with other human rights and fundamental freedoms, are safeguarded by Turkey’s Constitution and other relevant legislation. With a view to further aligning the domestic legal framework with international standards and principles, including especially those set by the European Court of Human Rights and the EU’s Copenhagen Political Criteria, Turkey has been undertaking comprehensive judicial reforms.
As part of these efforts, we enacted a new Penal Code in 2005, bringing a more democratic approach to freedom of expression and media issues. Article 301 of the Penal Code, which has been the subject of much criticism, was further amended by the Turkish Grand National Assembly in 2008 in order to overcome certain difficulties arising from its implementation. That change resulted in a substantial decrease (97.3 percent, to be exact) in the number of cases opened based on the concerned article.
Turkey has also been cooperating and collaborating with several international institutions and mechanisms, including the EU and the Council of Europe, regarding the issue of freedom of expression and media, and has been carefully considering the views expressed by these institutions on the concerned issues, including the recent cases of journalists who have been taken into custody. In this regard, we have also been in continuous dialogue with the OSCE Representative on Freedom of the Media, who visited our country at the end of 2011.
With regard to the above-mentioned cases, I would like to emphasize that, contrary to what has been suggested, a great majority of the persons referred to as “journalists in prison” have been charged with serious crimes—such as being a member of, or supporting an illegal or armed terrorist organization—that concern the security and integrity of our country and that are not related to their work as journalists or members of media organizations.
According to the information provided by the chief prosecutors, these journalists were taken in custody based on concrete evidence. Further, our criminal system, just like those of other democracies, requires that all accused, including the concerned journalists, are presumed innocent until proven guilty.
In the light of the above, we consider it inaccurate and unfair for the decisions of detention given by independent Turkish courts based on such crimes to be construed as violations of press freedom.
Turkey, like so many democratic nations, has work to do when it comes to the challenge of ensuring enjoyment of human rights and fundamental freedoms to their full extent. Recognizing this challenge, Turkey is continuously working to advance its legislation, taking into consideration the standards set by the international institutions with which we are in close cooperation.
In this regard, in January 2012, the Ministry of Justice presented a new legal package aimed at reforming the judicial system as well as advancing freedom of expression and freedom of the press. The concerned package has been submitted to the General Assembly of the Turkish Grand National Assembly for consideration.
The pending reform package includes amendments to key legislation, including the Turkish Penal Code, the Criminal Procedural Code, the Anti-Terror Law, the Press Law, the Law on the Court of Cassation, the Law on Judges and Prosecutors and the Law on Misdemeanors. When adopted, this package will improve the judiciary’s effectiveness, tackle issues regarding length of proceedings and detention periods, and enable further protection of freedom of expression and freedom of the press. [Editor’s note: The legislation was approved in July.]
One of the most important amendments in the concerned legislative package calls for the postponement of judicial fines, investigations, prosecutions and verdicts ruling up to five years of imprisonment imposed on journalists due to acts committed through the press or through publications or the expression of thoughts. This new legal feature would effectively serve as an amnesty for press-related offenses and would affect a significant number of cases concerning journalists in Turkey.
The new reform package will enlarge the scope of judicial control as an alternative to detention. On the other hand, it will also make it difficult for courts to issue detention orders without concrete evidence of strong suspicion that the defendant has a committed a crime. Courts will have to explain specifically why an arrest measure is preferable to other precautionary measures.
Additionally, the package will improve defense rights of the accused in investigations undertaken by specially authorized prosecutors, will restrict the scope of “propaganda for terrorist organization” and will reduce sentences for those convicted of committing a crime on behalf of an organized criminal group or a terrorist organization without being a member of it. It will also repeal the provisions authorizing judges to suspend publications that praise terrorist organizations or include their propaganda, and it will abolish the prohibition on suspending the sentence and changing the sentence to alternative sanctions for terror offenses.
Furthermore, under the reform package, the scope of the crime of “violating the confidentiality of an investigation” will be narrowed and certain provisions of the Turkish Penal Code, which increase the penalty for crimes when committed via press, will be repealed.
It is worth noting that, should the draft legislation pass, its provisions will affect approximately two million criminal cases and, of those, approximately one thousand five hundred will be decriminalized.
As evidenced by the information provided above, the Turkish government is determined to expand the scope of the freedom of expression and freedom of the press in Turkey. We firmly believe that guaranteeing fundamental freedoms is vital for our democracy. This is even more important now as Turkey is setting a significant example for many other countries in our region, especially those undergoing major popular upheaval and transformation.
I would like to express our hope that your report will reflect the general state of press freedom in Turkey in an objective manner, including also the steps which the Turkish government has been taking to ensure that we continue to live up to the highest standards on these matters.
With kind regards,
Turkish Ambassador to the United States
(Photo by Reuters)